The federal government can destroy Quebec records in the now-abolished long-gun registry, the Supreme Court ruled, casting into doubt a vision of Canada in which co-operation between levels of government would be enforceable by the courts.
The 5-4 ruling on Friday has implications for guns, politics and the Supreme Court itself. For the first time in recent memory, the three Quebec judges co-authored a dissent, saying Parliament had acted unconstitu- tionally in seeking to harm its partner in Confederation. In the process, they sent a message that they view the Canadian federation differently than most of their colleagues.
Quebec promised in the wake of the ruling to create its own registry, with new data, as it is constitutionally entitled to do. But while Quebec Public Security Minister Lise Thériault estimated the setup costs at $30-million, others said a registry could cost hundreds of millions of dollars, a doubtful proposition at a time when the province has just made cuts to its health and education budgets.
As the country heads toward a federal election in the fall, the ruling reinforces the divide between the Conservative government and many Quebeckers. Gun controls have come to be seen as a "Quebec value" after the 1989 mass murder of 14 women at Montreal's École Polytechnique.
At stake, beyond the registry records, was an idea of Canada called "co-operative federalism," in which Ottawa and the provinces work together on mutual objectives. The Supreme Court had called it an "unwritten constitutional principle," but when that principle was put to the test, a majority said it could not trump the "division of powers" set out in Canada's original 1867 Constitution. Criminal law is solely in federal jurisdiction, and the federal government is entitled to repeal a program it created, and the data that went along with it, the majority said, stressing that their ruling was not a comment on the usefulness of a gun registry.
In essence, the majority feared that the way Canada works would have been cast into uncertainty if it ruled in favour of Quebec. "To hold otherwise would undermine parliamentary sovereignty and create legal uncertainty whenever one order of government adopted legislation having some impact on the policy objectives of another," the majority said, in a ruling co-authored by Justice Andromache Karakatsanis and Thomas Cromwell.
Court supervision of co-operative federalism has now been put to rest, observers said.
"The idea of using co-operative federalism as an autonomous source of obligations and duties that can be imposed on either level of government is pretty much dead," Jean-François Gaudreault-Desbiens, a law professor at the University of Montreal, said in an interview.
"One level of government may act unilaterally and the consequences on the other level of government are not relevant," University of Ottawa law professor Sébastien Grammond said.
Travelling in a rural area southwest of Quebec City, Prime Minister Stephen Harper played down suggestions that the Supreme Court split shows there is a rift between Quebec and the rest of the country over gun control. He pointed out that the Quebec Court of Appeal, like the Supreme Court majority, had sided with his government. He also said Canada already has a strict regime of gun control, including the licensing of gun owners and registries for handguns and restricted weapons.
"It's important to note we made a promise to people in rural areas in Quebec and elsewhere in the country, and it was a decision that was well received in the rural areas." The registry had been created by a Liberal government in the 1990s.
Quebec had argued that the federal government subverted the province's plans to create its own registry by planning to destroy Quebeckers' records. The minority picked up on that theme, saying that "Parliament declared that its intention was to cause harm to the other level of government." The destruction of the records wasn't necessary to fulfill the federal government's purpose in closing the registry – to protect the privacy of gun owners – and thus went beyond the criminal law into provincial jurisdiction over property and civil rights, the minority said.
The dissent was authored by Justices Richard Wagner, Clément Gascon and the now-retired Louis LeBel, and joined by Justice Rosalie Abella of Ontario. Frederick Vaughan, who wrote a seminal history of the court, said the joint authorship by the three Quebec judges may have been a first.